Roe v. Wade
Roe v. Wade, 410 U.S. 113 (1973) was the landmark United States Supreme Court decision that recognized abortion as a constitutional right, overturning individual states' laws against abortion.
History of the case
The case originated in Texas in March 1970. It started when a pregnant woman named Norma McCorvey, using the pseudonym "Jane Roe," headed a class action lawsuit against the state of Texas's anti-abortion laws, claiming that the laws were unconstitutionally vague and abridged her rights under the First, Fourth, Fifth, Ninth, and Fourteenth Amendments to the United States Constitution. Dallas district attorney Henry Wade was the defendant in the case. Roe's attorney, Sarah Weddington, was a young University of Texas law student who played the leading role in pursuing the case. She argued the case twice in front of the Supreme Court, once after the case was put over for reargument. The trial court denied "Jane Roe" relief but on appeal the lower court's decision was overturned and finally it was argued in the Supreme Court on December 13, 1971, and then reargued on October 11, 1972. The court issued its opinion, backed by a 7-2 majority on January 22, 1973 with Justices White and Rehnquist dissenting. On the same day, the same 7-2 majority issued a similar ruling in the lesser-known case of Doe v. Bolton, 410 U.S. 179 (1973), involving Georgia's abortion laws.
The Bench
The makeup of the Supreme Court and their opinions were:
Opinion
Written by: Justice Harry Blackmun
- Joined by: Chief Justice Warren E. Burger and Justices William O. Douglas, William J. Brennan, Potter Stewart, Thurgood Marshall and Lewis Franklin Powell, Jr.
Concurring Opinions
- Written by: Chief Justice Burger
- Written by: Justice Douglas
- Written by: Justice Stewart
Dissenting
- Written by: Justice William H. Rehnquist
- Written by: Justice Byron White
- Joined by: Justice Rehnquist
Supreme Court decision
The majority opinion notes that criminalization of abortion did not occur until the nineteenth century and that restrictive laws emerged as a result of three concerns: (1) women who can receive an abortion are likely to be more sexually promiscuous, (2) abortion mortality was high until the turn of the twentieth century, and (3) the State has an interest in protecting prenatal life. In the Court's opinion, the first two justifications for outlawing abortion are obsolete, and a woman's right to privacy supersedes the third. According to Justice Blackmun, the right to privacy is implicit in the Due Process Clause of the Fourteenth Amendment. Justice Harry Blackmun's majority decision held that "the right of personal privacy includes the abortion decision, but that this right is not unqualified." Thus, the decision established a system of trimesters, whereby the State cannot restrict a woman's right to an abortion during the first trimester, the State can regulate the abortion procedure during the second trimester "in ways that are reasonably related to maternal health," and in the third trimester, demarcating the viability of the fetus, a State can choose to restrict or even to proscribe abortion as it sees fit.
Justice Byron White, joined by Justice William H. Rehnquist, dissented on constitutional grounds.
Aftermath
The Roe decision sparked nationwide protest, including a letter-writing campaign to the Supreme Court. Many Americans, including many Catholics and evangelical Protestants, believe that abortion is morally equivalent to infanticide, or rather that abortion is in itself infanticide. Widespread protest over the decision resulted in the creation of the Pro-Life Movement, which organized large protest rallies outside the Supreme Court. Pro-Life protesters frequently picket abortion clinics, distribute literature and other forms of persuasion to women considering abortion, and have promoted adoption efforts to steer women away from abortion. More extreme variants of the movement have also developed, some Americans consider these individuals to be terrorists using intimidation and fear to scare woman out of having an abortion or doctors from carrying out abortions. Abortion doctors have been the targets of harassment and even murder by pro-life zealots who claim that by taking the life of an abortion doctor they are actually saving many fetus' lives. Many abortion opponents have claimed that there exists a link between abortion and breast cancer, and Texas has enacted a law requiring literature advancing this theory be distributed to women considering abortion; more credibly, abortion has been linked to persistent guilt feelings and other psychological problems, and to a higher risk of future infertility. Every year on the anniversary of the decision, protesters continue to demonstrate outside the Supreme Court Building in Washington, D.C.
Several states have enacted laws limiting the right of abortion, including laws requiring parental consent for minors to obtain abortions, parental notification laws, spousal consent laws, spousal notification laws, laws requiring abortions to be performed in hospitals, not clinics, laws barring state funding for abortions, laws banning the partial-birth abortion procedure, although the latest court decisions indicate that a health requirement taking into account the interests of the mother is necessary, laws requiring waiting periods before abortion, laws mandating that women read certain types of literature before choosing an abortion, and many more. The United States Congress in the 1970s passed the Hyde Amendment, barring federal funding for abortion. Abortions are currently prohibited in overseas military hospitals, among other places, and the U.S. is barred from aiding international family planning organizations that might advise abortions. The Supreme Court struck down several state restrictions on abortions in a long series of cases stretching from the mid-1970s to the late 1980s, but consistently upheld restrictions on funding, including the Hyde Amendment, in the case of Harris v. McRae (1980).
Some academics also criticized the decision. In his 1973 article in the Yale Law Review, "The Wages of Crying Wolf," Professor John Hart Ely criticized Roe as a decision which "is not constitutional law and gives almost no sense of an obligation to try to be." Many academics before and after the decision supported the decision such as Judith Jarvis Thomson who before the decision offered an influential defense of abortion in "A Defense of Abortion" Philosophy and Public Affairs 1/1 (1971) 47-66.
Opposition to Roe on the bench grew as Ronald Reagan, who supported legislative restrictions on abortion, controversially made abortion his "litmus test" for judicial appointments. In addition to White and Rehnquist, Reagan appointee Sandra Day O'Connor began dissenting from the Court's abortion cases, arguing that the "trimester system" devised by the Court was arbitrary. Shortly before his retirement from the bench, Chief Justice Warren Burger suggested that Roe be "reexamined," and Burger's replacement, Justice Antonin Scalia, was a vigorous opponent of Roe. Concerns over Roe's overturning played a major role in the defeat of Robert Bork's nomination to the Court, and the man eventually appointed to replace Roe supporter Lewis Franklin Powell, Anthony M. Kennedy, was seen as a potential anti-Roe vote. In a 5-4 decision in 1989's Webster vs. Reproductive Health Services, Chief Justice Rehnquist, writing for the Court, declined to explicitly overrule Roe, but did uphold several abortion restrictions and substantially modified Roe's trimester framework. In a concurring opinion, Justice O'Connor pointedly refused to reconsider Roe. Justice Antonin Scalia, in a concurring opinion, refused to join the plurality's opinion because it refused to overrule Roe, which he believed should be overruled, and criticized O'Connor's ambiguous position on the matter. Justice Harry Blackmun, by now a passionate defender of his Roe opinion, dissented angrily, arguing that the plurality opinion signaled doom for the abortion right.
With the retirement of Roe supporters William J. Brennan and Thurgood Marshall, and their replacement by "conservative" judges appointed by President George Herbert Walker Bush, many predicted the demise of Roe. The Supreme Court, however, in Planned Parenthood v. Casey, 505 U.S. 833 (1992), reexamined Roe and explicitly upheld its validity by a 5-4 vote. A plurality of Reagan-Bush appointees, O'Connor, Kennedy, and David H. Souter, reaffirmed that the Constitution protects a right of abortion. Rehnquist and Scalia filed biting dissenting opinions. During the 1990s, attempts were made at the state level to ban "partial-birth" abortions, which were struck down, again by a 5-4 vote, in Stenberg v. Carhart, 530 U.S. 914 (2000), with Justice Kennedy, co-author of the Casey decision, among the dissenters. Subsequently, Congress passed a law banning third trimester abortions, which is currently in litigation. George W. Bush has proposed an amendment to the constitution that would ban third trimester abortions. Courts are however consistently ruling that health requirements are necessary to consider the interests of the pregnant woman.
Roe switches sides
In an interesting turn of events, "Jane Roe," whose real name is Norma McCorvey, became a member of the pro-life movement following her conversion to Christianity, and now fights to make abortion illegal. McCorvey claims that she was the "pawn" of young, ambitious lawyers who were looking for a plaintiff so that they could challenge the Texas state law prohibiting abortion. Using her prerogative as a party to the original litigation, she sought to reopen the case in a U.S. District Court in Texas and have it overturned. Her new stance is based on claims made since the decision, including evidence of emotional and other harm suffered by many women who have had abortions, increased resources for the care of unwanted children, and additional evidence of the humanity of the fetus. On June 19, 2003, Judge David Godbey ruled that the motion was not made within a "reasonable time." McCorvey's lawyer maintains that no time limit exists for such motions, and an appeal seems likely.
External links
- Text of the decision from Findlaw (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=410&invol=113)
- Listen to first of two audio recordings of the Roe V. Wade debates at www.oyez.org (http://www.oyez.org/oyez/resource/case/334/argument.mp3)